“The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings!”
I
What is this thing neutrality? I do not understand it. There is nothing to it.” The author of this blunt remark can hardly be accused of ignorance or stupidity. If Gustavus Adolphus thus frankly expressed himself to the Elector of Brandenburg it was because his keen mind had grasped the paradoxes, contradictions, and pitfalls with which the subject of neutrality fairly bristles. How many of those who of late have offered solutions for the problems neutrality presents have formulated any definite idea of what they are striving for or have logically deduced the effects of the remedies they advocate? In reading the innumerable works of jurists who have dealt with the matter, the reader is soon swamped in a sea of conflicting precedents which vary with the age that adopted them, the people who promulgated them, the situation that motivated them. Aaron Burr’s definition of law as “anything that is confidently asserted and plausibly maintained” involuntarily comes to mind. Before any order can be brought out of such chaos, some straight thinking will have to be resorted to in order to ascertain what it is that nations and individuals have sought to accomplish by what they are pleased to call neutrality.
The idea of neutrality as a national policy that refrains from taking sides in a war being waged between other powers is of recent origin. “Unneutral service” is a modern conception, one which unfortunately for the peace of the world is being undermined by the idea of “collective security” and other utopias designed to maintain the status quo. Belligerents in the past expected their neighbors to adopt a friendly, “hold your coat” sort of attitude. A shadowy feudal obligation was long considered an excuse for such flagrant violations of neutrality, in the present- day acceptation of the word, as the granting of passage to an army. In the eyes of statesmen of the Thirty Years’ War period, the treaty neutralizing Belgium would have relieved that country from any obligation to resist German invasion in 1914. “Not neutrality but obedience is what is called for,” Tilly informed the Landgraf of Hesse as he crossed Hessian dominions. With these aspects of neutrality we are fortunately not concerned, so let us pass on to some that do interest us.
A war between major powers has in the past offered to neutrals an opportunity for an increased carrying trade and enormous profits which more than compensate for any dislocation of normal peace-time traffic. That there might be anything inherently wrong in extracting profit from another nation’s troubles never occurred to our forebears.
Those who choose to live in peace retain their natural rights to pursue their agriculture, manufacture and ordinary vocations, to carry the produce of their industry for exchange to all nations, belligerent or neutral as usual, to go and come freely without injury or molestation; in short that the war among others shall be for them as if it did not exist.
Thus did Thomas Jefferson state the position of the United States in the wars of the French Revolution, a position which, though basically sound, we were unable to maintain for the simple reason that it contained some rather untenable contentions. War-time trade is seldom “ordinary” or “usual.” Traders are quick to take advantage of the existence of “the war among others.” Belligerents can hardly be expected to concede any “natural rights” to trade with the enemy. Hence the endless disputes concerning the definition of contraband, continuous voyage, blockade, visit and search, and the other technicalities which fill so many dreary tomes of legal lore. An analysis of the relative merits of the various contentions of belligerents and neutrals will serve no useful purpose. It is a case of might makes right. As a result our attempts to act as if the war “did not exist” have met with but little success. Nevertheless, with certain limitations we shall mention, Thomas Jefferson’s dictum should remain our goal.
The historic sequence of thought concerning neutral rights and duties is of interest at this time when ideas on these subjects are undergoing a radical reappraisal. Until recently the problems of neutrality have been approached solely from the point of view of the relations between neutrals and belligerents, the neutrals striving to obtain the maximum of wartime traffic, the belligerents striving to restrict trade with their particular enemy to a minimum. Although the negotiations resulting from this antagonism are colored by the interests of the respective parties, some nations have had the forethought to see that at some future time they might be “on the other side of the fence.” Great Britain’s attitude during our Civil War displayed an uncanny insight as to where her interests might lie in the event of her becoming involved in a European war, especially in the matter of “continuous voyage,” which stood her in good stead in subsequent arguments with us during the opening months of the World War. Such perspicacity, however, is exceptional and most nations yield to popular clamor and are governed by their immediate advantage. Not until the ghastly cost of the World War to winner and loser alike came to be fully realized, not until it became obvious that neutrals were not likely to make any real profits from future wars that might bankrupt the contestants, did neutral thought, in this country at any rate, begin to change. Our attitude on neutrality is now being revised mainly with the view of keeping us out of war at any cost. No surrender of principle or precedent seems too great. Peace at any price is the order of the day. Having sacrificed our naval hegemony on the altar of peace we are now prepared to sink most of the “rights” for which we previously contended and even fought.
Will this new sacrifice bring the millennium any nearer? The framers of our recent legislation evidently thought so. An examination of the Neutrality Act of 1937 and the discussions that preceded its adoption would indicate that the only serious menace to our peace lay in the assertion of our “neutral rights.” If that danger could be eliminated our peace would, it seems, be secure. The thought that we might conceivably become involved in an original war, one that was not a participation in a conflict already in progress, seems not to have been given much consideration. The fact that three of our wars were due to our becoming entangled in a European struggle against our will has apparently blinded us to other dangers equally imminent.
Although our attitude as a neutral has an obvious bearing on our ability to keep from becoming involved in a war to which We are not an original party, no set of rules that we may promulgate will have any appreciable effect on our ability to avoid an original war, a war involving our national policies as distinct from our stand as a neutral. Our policies as a neutral will, however, set certain precedents of our own creation which will have a far-reaching effect on our conduct of war, whether that war be one in which we are involved ab initio or whether it be one in which we become involved as a result of our stand as a neutral. The most elementary dictates of self-preservation, to say nothing of a decent respect for consistency, should therefore impel us to examine our neutral attitude from both “sides of the fence.”
It is a truism that legislative acts never settle a question definitely. It is the interpretation given to such acts that determines their real import. The Neutrality Act of 1937 is no exception. In fact it gives the executive branch such wide discretion, and wisely so, as we shall attempt to prove, that our attitude on neutrality can be said to be still in the making. Advocates have not been lacking to urge that the interpretation of neutrality is a diplomatic function and that the more freedom the executive is given, the less his hands are bound by legislative acts, the greater the pressure that can be brought to bear on belligerents to secure the recognition of such rights as the neutral is unwilling to surrender. Much can be said in defense of this view although the failure of our diplomacy in the past to keep us out of war is not encouraging. That water, however, is over the dam.
Congress in its wisdom, and in this respect it undoubtedly reflects the wishes of the great majority of Americans, has decided that the time for formulating a neutral policy is not during war time when opinion is necessarily agitated. Measures adopted calmly at this time are less apt to give umbrage to other nations, whereas any change of the previous standards might seem an unfriendly act if made in view of a pending or imminent conflict. Moreover certain authority must be granted the executive in addition to those ordinarily vested in him in order to make the neutral weight of the nation felt. How successfully the present act will accomplish the results its framers have hoped for will depend somewhat on the act itself and somewhat on the interpretation given it, both of which elements (substance and potentialities) we shall now attempt to appraise.
II
The Neutrality Act of 1937 begins with a radical departure from the previous American doctrine. During the World War Germany had protested against the enormous quantities of munitions being supplied by America to the Allies, a source of supply that was denied to Germany owing to her inability to keep her sea lanes open. The reply of Secretary Lansing stated the American position substantially as follows: To deny a belligerent access to munition markets would be to put a premium on an extensive increase in munition works throughout the world and, moreover, might close a similar source of supply to the United States in time of war, to our great peril, the policy of our people having always been averse to large armaments in peace times. The present armament race, which is partly due to the fear of embargoes and sanctions, fully bears out the soundness of Secretary Lansing’s contention.
The belief that our traffic in munitions was largely responsible for our becoming involved in the World War is undoubtedly the reason for the mandatory embargo on arms and munitions contained in Section 1 of the act. It cannot be logically attributed to any so-called humanitarian principles since the sale of arms and munitions in peace time is freely permitted under a licensing system designed mainly to prevent filibustering. It is the desire to avoid the possibility of becoming involved in any future war that is responsible for our decision to withold arms and munitions from belligerents in future. We shall pass over the effect on our own preparedness that may result from thus limiting the capacity and experience of American munition makers.
Now several reflections naturally come to mind at this point. Obviously a neutral is not called upon to negative the advantages accruing from a control of the sea, especially when in so doing he would merely be playing into the hands of another belligerent whose armaments may be equally large but mainly military. If, nevertheless, we are to embargo why stop at munitions? Why not put a mandatory embargo on raw materials that may be just as necessary to a belligerent as shells and explosives? The distinction between absolute and conditional contraband is purely a metaphysical one and owes its origin not to the belligerents themselves but to the fact that in the past neutrals have been unwilling to restrict their trade beyond certain articles essentially military in character. That we should be unwilling in the future to allow our ships to take the risks incidental to transporting munitions is understandable but a mandatory embargo on arms even when carried by the belligerent deprives us of our most effective means of safeguarding our commerce in raw materials and commodities. It was not until the publication of some British war memoirs that it became apparent that we had held in our hands a weapon sufficiently potent to have enforced any demands we might have chosen to make concerning British interference with our trade with the continent of Europe. The possibility of an arms embargo haunted the British Cabinet. To deprive ourselves by our own legislation of our only sure means, short of force, of protecting such of our trade as we are not willing to surrender from the encroachments of sea power, far from keeping us out of war may have a diametrically opposite effect.
Having made the embargo on arms and munitions mandatory in the event of war between nations, it was probably unavoidable to give the President a similar power in the event of civil strife. Here again we have a new departure in that it is the first time that arms may be refused to a recognized government engaged in quelling an unrecognized insurrection. Had a similar interpretation of neutrality obtained in Europe during our Civil War the history of this country might have been different. The possibilities for making enemies contained in this section of the act are obvious. By applying or not applying this permissive embargo the United States is placed in the position of assisting one of the warring factions in a civil war. The problem such a conflict presents is serious enough without adding to it by departing from the long established precedent of permitting purchases by any de facto government to whom belligerent rights have been accorded. Any abandonment of the recognized rules of international law would “threaten or endanger the peace of the United States,” the very thing this paragraph seeks to avoid.
The next section is a highly controversial one as it contains the so-called “commodity embargo.” The President is empowered to place “restrictions on the shipment of certain articles or materials in addition to arms, ammunition, and implements of war” whenever he deems such restrictions “necessary to promote the security or preserve the peace of the United States or to protect the lives of citizens of the United States.” On its face this paragraph seems merely another manifestation of the peace-at-any-price spirit that pervades the entire act. If our trade in commodities is interfered with, rather than protect it restrictions are to be placed on the shipping of such commodities on American vessels. That this provision flies in the face of all our previous experience is evident. It is another attempt to revive the unsuccessful policies of Jefferson and Madison that exasperated maritime New England to the point of threatening secession. That any wholesale embargo on commodities can be enforced is most doubtful. Another war will find us facing the same problems that faced us in 1914, with one added and most serious menace to our peace.
The vagueness of the language used in Section 2 is ominous. It would permit the President to commit such flagrant breaches of neutrality as to increase greatly our chances of becoming involved in conflicts that are no concern of ours. Advocates of short-cuts for helping the “right” side without actually intervening are still with us. Believers in “sanctions” against “aggressor” or “militaristic” nations are vociferous. Future presidents may find their lot in times of turmoil more unenviable than ever, harassed by belligerents abroad and by partisans at home. The news of the German bombardment of Almeria was not 24 hours old before our State Department was besieged by “peace societies,” and some senators, urging that we extend our “neutrality” in the Spanish Civil War by placing an embargo on exports to Germany.
The worst feature of Section 2, however, is that it puts us into partnership with the maritime powers of the world. If this section is applied, nations unable to maintain surface communications need expect no help or pity from us. Rather than attempt to maintain any trade with them, either directly or through other neutrals, we would withdraw from the sea and leave them, and our own traders, to their fate. On the other hand, nations possessing enough sea power to reach our ports can load up to the gunwales, provided no American citizen retains any “right, title or interest” in the goods shipped. The insuring in American companies is also barred. The provision in question is frequently called the cash-and-carry plan. That Congress was not quite sure of the pacific influence of Section 2 is evident from the fact that it made that section expire May 1, 1939. “For this relief, much thanks!”
The next section is designed to prevent warring nations from floating loans in the United States. What would have happened to the Union had Europe adopted a similar attitude during our Civil War is again beside the point. The provision is mainly a fiscal one, also an academic one, since it is doubtful whether any such loan could be floated again in the United States.
We come now to Section 4, a gem of the purest waters, worthy of being quoted in extenso:
This act shall not apply to an American republic or republics engaged in war against a non-American State or States, provided the American republic is not co-operating with a non-American State or States in such war.
Poor old Europe, she does not get much understanding from the “younger generation”! “Children,” Oscar Wilde once remarked, “begin by loving their parents, they end by judging them. Seldom if ever do they forgive them.”1 All European wars, apparently, are vicious, the result of impenitent militarism and therefore to be put on the Index. Any war an American republic may wage against an oversea foe is ipso facto virtuous and should be aided and abetted. The muddle-headed thinking embodied in this section passes all comprehension. A South American republic engaged in a war with an Asiatic power forfeits all our co-operation if the republic obtains the support of a European nation, a situation that is the reductio ad absurdum of the entire section. This section of the act could be dismissed as “comic relief” were it not for the fact that it sows the seeds of distrust between Europe and the Americas.
The next sections need not detain us. Section 5 provides for a National Munitions Control Board. Section 6 prohibits American vessels from carrying arms in violation of Section 1. Section 7 is designed to prevent our ports being used to supply belligerents at sea. Section 8 empowers the President to prevent submarines and armed merchantmen from entering our ports. In this connection it should be noted that to treat armed auxiliary cruisers as vessels of war is in accordance with sound established practice. To so treat armed merchantmen who are not cruising but engaged in the carrying trade, even though in so doing the merchantmen may be transporting contraband and arms, is a departure from long accepted usage and one that may react unfavorably to our own interests should we engage in war. The matter will be discussed further in connection with submarine warfare. Section 10 prohibits the arming of any American vessel engaged in commerce with belligerents. It merely confirms the generally accepted doctrine that a neutral may not arm without losing his status as a neutral. The remaining sections contain the usual definitions and provisions for enforcement.
If we have reserved Section 9 for special consideration it is because it is the most revolutionary in its implications. This section, which makes it unlawful for an American citizen to travel on a vessel of a belligerent, has given rise to the witticism that the Neutrality Act should be called “An Act to Keep the United States out of the War of 1914-1918!” It is a belated justification of Secretary Bryan’s position and the cause of many rueful regrets. Let us examine the situation dispassionately. It has become the fashion of late to blame our government for not having consented to a relinquishment of the right of travel on belligerent ships at the time Germany proclaimed her first war zone. Critics of our position in 1915 point out that neutrals are not entitled to the protection of their government when on belligerent ships, that they have abandoned it and placed themselves under such protection as the belligerent can furnish; all of which is perfectly true. But what we are prone to lose sight of today is that the surrender of the right to travel on belligerent merchantmen represents a very real loss of opportunity to a nation whose range of trade and travel far exceeds the facilities of its own merchant marine. No government can be blamed for attempting to preserve that right. Until the turn of the century it was not too great a concession to require of belligerents that they conduct their maritime operations so that the discomfort of capture and the possible loss of personal property was the worst that could happen to a neutral on a belligerent merchantman. After all, the sea outside of territorial limits is public property on which belligerents should conduct their operations with as great a regard for neutrals as possible.
And then came the submarine. The risks to neutral passengers were suddenly increased beyond any conceivable limit. Those who are so glib in stating that the result of submarine warfare could have been foreseen can prove their omniscience by some accurate predictions as to what the future has in store concerning some other contributions of science to the art of war. Aerial warfare and deep-sea mining are probably in their infancy. La guerre totale is looming on the horizon.
The provision of our Neutrality Act banning the use of belligerent merchantmen to American travelers is a belated recognition of the right of the submarine to attack without warning. It also sweeps away any distinction between merchantmen and warships as far as immunity is concerned, and logically so. Even an unarmed merchant vessel can ram a submarine. Every old tanker is a potential submarine destroyer. Now an unexpected corollary of this proposition has probably escaped the notice of the “pacifists” who are responsible for this section. Few nations are as self-contained as the United States. A conception of war that permits a ruthless destruction of merchantmen, that considers everything afloat flying the enemy flag, save hospital ships, as fair quarry strengthens the war-time position of a continental power. Having made the sacrifice of our convenience, let us not lose the compensatory advantage.
The next corollary of Section 9 is more difficult to appraise. The inability of a submarine to resort to visit and search without grave danger to its safety resulted in the proclamation of war zones within which the previously accepted rules of procedure were to be discarded. The blockade of a coast is an extension of the state of siege. Even as practiced during the Napoleonic Wars it gave rise to protests from neutrals who promptly adopted the slogan that “a blockade to be binding must be effective.” Gradually, however, a reasonably effective blockade came to be regarded as an acceptable substitute for the airtight investment of the old-fashioned siege. The advent of the submarine necessitated a further relaxation of the blockade. A wider area was claimed as a field of operations into which neutrals as well as belligerents ventured at their peril. How far can this last extension be recognized by neutrals? The subject is still undetermined but an examination of the operations of the World War indicates a rather clear line of demarcation on which neutrals may well insist. To illustrate by concrete cases: The blockade of the British Isles by submarines operating unrestrictedly in certain well-defined war zones served to isolate those islands, to effect a state of siege, on a wide scale, to be sure, and consequently somewhat uncertain in efficiency. The principle involved, however, has probably passed from theory to practice and neutrals in future will have difficulty in avoiding the precedent established by the World War. The war zone proclaimed by Germany in the Mediterranean, however, was of a radically different nature. It obviously could not be considered an extension of the state of siege as the enemy still possessed land frontiers which could not be blockaded. All it could accomplish was to endanger neutral trade with other neutrals as well as with belligerents, a situation no neutral can be expected to approve.
A third and last corollary should be noted. In the days of privateering, merchantmen were allowed to carry an armament which, although insufficient to enable them successfully to resist a regular warship, enabled them to resist similarly armed rovers without thereby losing their status as merchantmen. Although the practice fell into disuse after the Napoleonic Wars when privateering was abolished it was revived in the presence of the submarine menace. Nations like ourselves had best be careful how they question a practice they may find most necessary in the event they become involved in war. Our position during our neutrality, between 1914 and 1917, was in accord with time-honored tradition and should be rigidly adhered to in future. The distinction between an armed merchantman and an auxiliary cruiser is a very real one and can be easily determined. Over-simplification of the issue would constitute one more abandonment which we may regret in the years to come. The discretionary power vested in the President by Section 8 should be cautiously used in view of possible war zones along our own coast.
Before leaving the subject of submarine warfare one matter remains to be considered. Section 8 authorizes the placing of “special restrictions on the use of our ports ... by armed merchant vessels of a foreign state,” a wording that could lead to trouble with other neutrals bent on trying “armed neutrality.” It also authorizes similar restrictions on submarines. If over-simplification of the armed merchantman issue might work to our disadvantage, objection can also be made to complicating the recognized rules concerning men-of-war by singling out one type, the submarine, for special treatment. A continental nation, to which category the United States unmistakably belongs, has more to gain than to fear, in the long run, from the use of submarines as commerce destroyers, especially if the traditional right of a merchantman to carry a moderate “defensive” armament be not impaired. The danger to neutrals from submarine warfare is indissolubly linked with another question, already referred to, the extension of submarine zones. In so far as this section is aimed at making it impossible to locate a war zone uncomfortably close to our coast, it is a wise provision. To permit submarines to maintain station off our coasts by availing themselves of the privileges usually granted to surface cruisers in neutral ports would lead to an interference with our trade we cannot tolerate. If, on the other hand, this section is another attempt to “outlaw” the submarine as a commerce destroyer it is sheer sentimentality and may create a precedent we would find most awkward in our own conduct of naval operations. The sooner we realize that submarine warfare within reasonable war zones has come to stay, the better.
IV
Coming now to general considerations, it is difficult to see how the present Neutrality Act will serve to keep us out of war. To the reasons already assigned, one more must be added. One of the principal causes of friction between neutrals and belligerents has ever been the question of “continuous voyage.” In this respect the act leaves us just where we were in 1914. Are neutrals bound to accept a belligerent’s list of contraband? How can it be determined whether shipments to another neutral will be transshipped to a belligerent? When has a shipment been sufficiently processed to lose its identity? If we allow the dominant sea power to decide these points we pave the way for the system of “licensing,” “rationing,” and “blacklisting” which seriously injured our trade during the World War, besides driving Germany to desperate reprisals with the result we all know. The plain truth is that neutrality does not necessarily mean peace. It contains the germs of war, but if and when it does lead to war let it be a war of our making for principles we consider just, for rights we believe to be our due, not a war forced on us by partiality or indifference, a war into which we stumble as into a trap set by the wily for the unwary. The arms embargo has already gravely weakened our chances for a peaceful solution of our contentions. The commodity embargo may partially offset that disadvantage and fortunately the President is given wide discretion to deal with any situation that may arise. But diplomacy is powerless unless backed by force. Much as it may displease the idealists who hope to keep us out of war by continual surrenders, sooner or later the breaking point is reached. The complaints of the Southern Senators when Great Britain placed cotton on the absolute contraband list, although cotton was then selling at fantastically high prices in our country, may be taken as an indication of what to expect should we attempt to withdraw from world markets in any future war. The demand for force, the ultimate arbiter of human events, would become irresistible. The stronger the force at our command, the less likely we are to be compelled to use it, but until a millennium, which is not yet in sight, comes to the rescue of this troubled planet no substitute can be found for courage and preparedness.
One point should be carefully considered by our peace-at-any price advocates. It was our failure to hold the scales even by protecting our trade in commodities and foodstuffs, rather than our munition shipments, that led Germany to reprisals against all shipping, neutral as well as belligerent, and ultimately forced us to resort to arms. Although the future is in the lap of the gods, it is safe to say that a scientifically-minded nation that has lost control of surface communications will not allow the enemy to monopolize sea-borne traffic, but will seek to interrupt it by resorting to new and unorthodox measures that may bring the war to our very doorsteps and compel the most ardent pacifist to revise his Oxford oath, the most inveterate anti-militarist to regret any penny-wise naval policy. Unless we can learn to think straight and are prepared in future to defend our trade against all comers, we may be spared the trouble of deciding whether or not to go to war; others will decide that question for us.
“What is this thing neutrality? I do not understand it. There is nothing to it!” If Gustavus Adolphus could return to earth he would find that many who profess to understand it have such warped notions that the methods of his contemporaries appear positively enlightened. At least in those days you knew who your enemies were, they were not assigned to you by Geneva. Nor were you informed when you sought to protect yourself that “higher morality” rendered alliances unnecessary. You did not live in constant dread of seeing your supplies of food and essential commodities cut off by some rival who objected to your plans but preferred to let others pull the chestnuts out of the fire. Violence may have played an important role in world affairs but it was a frank, outspoken resort to arms, action not intrigue. “Not neutrality but obedience is what is called for,” a somewhat stern reminder of the futility of resistance but preferable to being coerced into decreeing sanctions. Diplomacy was still an art. The balance-of-power system opposed the outbreak of wars. Impartial neutrality effectively restricted their areas and intensity besides paving the way for friendly mediation. The pathetic feature of our latest legislative venture is that it has failed to rise superior to the evils of our times. Principles painfully established, but badly undermined by our complaisance during the World War, are further discredited. We have now, however, surrendered more than trade rights. We have shirked our responsibilities, thereby betraying the cause of neutrality itself, the one force that may save our civilization from disintegration. Therein lies the congenital taint of the Neutrality Act, one that no amount of executive wisdom can dispel.
V
That the present Neutrality Act is unworkable is probably best illustrated by the fact that it has been found inapplicable in the first serious test to which it has been put, the war, for such it is, being waged in the Far East. In order to put an arms embargo into effect the conflict would have to be recognized as a war, in which event Japan would still be able to secure many necessary commodities on the cash-and-carry plan. Rather than face this situation our government limited the arms embargo to government-owned merchantmen. Privately-owned vessels engaging in such trade do so at their own risk. It was the willingness of American shipping to engage in risky transportation during the World War that was largely responsible for our having become involved in that conflict. That the present law is due for some revision is more than likely. This raises the problem as to what form such revision should take. What rules can we reasonably expect future belligerents to observe? Stated differently, bearing in mind that we may some day be belligerents ourselves, what concessions can we afford to make to the needs of belligerents? What attitude on our part will in the long run best serve the interests of international peace? The writer would suggest that our policy of neutrality in future should be an insistence on the right of our nationals to trade with belligerents and neutrals in foodstuffs, raw materials, and other articles usually termed “conditional contraband” subject to (a) a blockade maintained by a sufficient force to render it substantially effective, (b) a war zone reasonable in extent, patrolled by a surface, air, or submarine force sufficient to control the area, (c) an interpretation of the doctrine of “continuous voyage” and “conditional contraband” that does not place the burden of proof on the neutral. To enforce our contentions on these points arms should be embargoed if necessary, otherwise there would seem to be no sound reason for interfering with such exports when carried by the belligerent.
The first limitation can be dealt with summarily for the simple reason that in modern warfare it is practically nonexistent. Weather conditions made it difficult of attainment long before the submarine made it quasi impossible. It does, however, constitute a historic starting point from which a maritime neutral may insist that the war zone should not too radically depart. No one questions the right of a belligerent to enforce a strict blockade. How far can the loose blockade of the war zone be imposed on neutrals?
The question as to what constitutes a reasonable war zone is, of course, one that cannot be dogmatically answered. Each case must be considered on its merits. As a general proposition, however, the blockaders would seem within their rights today when they employ the mine field, the airplane, and the submarine, the usual war zone weapons, to render impassable water that normally leads only to the coast of the blockaded party and assume that any vessel within such areas is on the enemy’s errand. In narrow waters a fairway should be maintained for the passage of neutrals bound on their lawful business. The German proposition to that effect during the World War seems less revolutionary today in view of recent naval developments. The subject is one on which international agreement is urgently needed. Before it can be reached one far- reaching step must be taken. Unrestricted submarine warfare must be recognized.
The subject of conditional contraband seldom appears except coupled with continuous voyage. The question usually presents itself in an extremely irritating manner. Some vessel is stopped miles out to sea or off some neutral port with an apparently innocent cargo aboard consigned to some neutral. The proceeding is defended on the plea of a “distant blockade.” Obviously there is no such thing; it involves a contradiction of terms as the word “blockade” implies something close. It is merely a search for enemy property on the high seas. Nor is the nature of the act altered by compelling the neutral to “voluntarily” report for examination at some designated port. Acquiescence on the part of the neutral borders on unneutral service. Left to their own devices belligerents in control of the sea will treat all merchandise so discovered as contraband unless the shipper can prove otherwise, which he seldom if ever can do. The damage done to our legitimate and normal trade with the Scandinavian countries by Great Britain during the World War is still fresh in the minds of American exporters. One Senator summed up the situation at the time, humorously but accurately, when he inquired whether ostrich feathers had been put on the contraband list. Arguments and logic break down completely when these questions arise. The only safe rule for a neutral is to refuse to be drawn into an argument and to insist that certain articles on whose marketing his prosperity depends must pass freely to other neutrals regardless of the use to which they may be put. It is only in the exceptional case of absolute contraband or a few articles of conditional contraband clearly destined for the armed forces of a belligerent that the doctrine of continuous voyage should be admitted. Above all, the “pre-empting” that grew up during the World War must be discountenanced in future. Purchasing a questionable seizure may satisfy the shipper financially but Germany was within her rights when she claimed that by submitting to the practice had committed an unneutral act for which unrestricted submarine warfare was the logical reply.
Now obviously the choice offered a neutral is not a pleasant one. He must be prepared for sacrifices and possible reprisals in the event of war between major Powers or be prepared to show his teeth. Paradoxical as it may seem, the surest way of localizing a war and to hasten the return of peace is to resist resolutely the first encroachment on the neutral rights above claimed. To allow the situation to become intolerable before acting will inevitably involve the neutral in spite of his desire to maintain his peace and to restore that of others. Nothing is to be gained by being mealymouthed about the situation. If the American people want to tie the hands of their executive, to hamstring their fighting forces, to legislate themselves into impotency, to increase the confusion that will inevitably fall on commerce and industry in the event of war between others, they are within their rights, suicidal though such a course may seem. If on the other hand they want a strong shield to protect them on their lawful errands it is within their reach. It is precisely for such an emergency that we have spent our time and treasure forging that wonderfully efficient combination of men and material, the United States Navy. The task of enforcing our rights as neutrals in any future war is bound to be even more difficult than in past wars. It will involve such complicated operations as compelling belligerents to stay within reasonable war zones when waging unrestricted warfare, an operation that is not meeting with much success in the Mediterranean today, largely owing to a lack of uniform policy on the part of the maritime powers involved. It may conceivably require the convoying of merchantmen to neutral ports, a delicate matter as “armed neutrality” always borders on war. Moreover, since “he who comes into equity must do so with clean hands,” our own extensive coast must be patrolled for possible evasions of strict neutrality. The point to be borne in mind, however, is that the problem is not a legislative one. It is a joint diplomatic and naval one. Except in so far as it strengthens the executive branch of the government, legislation on neutrality is liable to defeat its purpose. Any hesitancy to use the force at our command only increases the chances of conflict. We have in the past had a sound policy, first proclaimed by Thomas Jefferson, later amplified by costly experience. We still have a sound Navy. Whom are we to blame if again we submit to the vexations that led us into three foreign wars: the undeclared war against France, the War of 1812, the World War?
“The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings!”2
* This article was submitted in the Prize Essay Contest, 1938.
2A Woman of No Importance
3Julius Caesar, Act I, Scene 1.